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IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgement reserved on: 13.01.2016
Judgement delivered on: 03.02.2016
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CO.PET. 405/2015
NTT DATA GLOBAL DELIVERY SERVICES
PRIVATE LIMITED
.... Petitioner/ Transferee Company
WITH
NTT DATA OPTIMAL INDIA DELIVERY SERVICES
PRIVATE LIMITED
... Non-Petitioner/Transferor
Company
Through: Mr. Mukesh Sukhija, Advocate.
Through: Ms Aparna Mudiam, Asstt. ROC.
Mr Rajiv Behl, Adv. for the OL.
CORAM:
HON'BLE MR. JUSTICE RAJIV SHAKDHER
RAJIV SHAKDHER, J
1.
This is a second motion petition filed by NTT Data Global Delivery
Services Private Limited (i.e. the petitioner company) under Section 391
and 394 of the Companies Act, 1956 (hereafter referred to as the Act) for
approval of the scheme of amalgamation (hereafter referred to as the
scheme) with NTT Data Optimal India Delivery Services Private Limited
(i.e. transferor company).
1.1
The registered office of the petitioner company is located within the
territorial jurisdiction of this court. The registered office of the transferor
company is located at Bangalore, within the jurisdiction of the High court
of Karnataka.
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1.2
The details with respect to incorporation and the petitioner’
authorised, issued, subscribed and paid up capital have been set out in the
petition.
1.3
The petitioner company was originally incorporated on 19.07.1989,
under the name and style : Sriven Computer Solutions Private Limited.
However, with effect from 01.07.1997, it got converted into a public
company, and was, thus, known as Sriven Computer Solutions Limited.
1.4
Evidently, the petitioner company changed its name on four
occasions after obtaining due approvals, before it acquired the current
name. The details with respect to the same are as follows :S.No.
Existing name
1.
Sriven Computer
Limited
Metamor
Global
Limited
2.
3.
Solutions
PSINet Consulting Solutions
(India) Limited
Signaltree Solutions (India)
Limited
Keane India Limited
NTT Data Global
Delivery Services
Limited
4.
5.
1.5
Solutions
Changed
Name
Metamor Global
Solutions Limited
PSINet Consulting
Solutions (India)
Limited
Signaltree Solutions
(India) Limited
Keane India Limited
Date
30.09.1997
22.11.2000
29.03.2001
21.03.2002
27.01.2012
Thereafter, the petitioner company converted into a private limited
company and a fresh Certificate of Incorporation dated 23.02.2015 was
issued by the Registrar of Companies, NCT of Delhi and Haryana (in
short, ROC). Thus, with effect from 23.02.2015 the petitioner company
got converted into a private limited company and its name was changed to
its present name viz., NTT Data Global Delivery Services Private
Limited.
2.
The transferor company, on the other hand, was incorporated on
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25.09.2002, under the name and style : Optimal Solutions Integration
(Software) Private Limited.
2.1
On 12.05.2014, the transferor company’s name was changed, after
obtaining due approvals of the concerned Registrar of Companies, to its
present name i.e. NTT Data Optimal India Delivery Services Private
Limited.
3.
The copies of Memorandum and Articles of Association, as well as,
the profit and loss account and the balance sheet as on 31.03.2014, have
been filed by the petitioner company.
4.
Copy of the Board of Directors’ resolution dated 24.03.2015,
concerning the petitioner company, whereby, the scheme has been
approved, has also been filed with the petition.
5.
The petitioner company has averred that there are no proceedings
pending against it, under Sections 235 to 251 of the Act.
6.
To recapitulate, the petitioner company had, in the earlier round
filed a petition (i.e. the first motion), being: CA(M) No.93/2015, whereby,
a prayer had been made for dispensing with, the requirement of convening
meetings of only the shareholders and secured creditors, as it did not have
any unsecured creditors. This court vide order dated 25.05.2015, having
regard to the fact that all the shareholders and all the secured creditors of
the petitioner company had given their consent to the scheme, dispensed
with the requirement of convening meetings, as prayed.
7.
The petitioner company, thereafter, filed the instant petition (i.e. the
second motion).
Notice in this petition was issued on 06.07.2015.
Notices were accepted on behalf of both the Regional Director (RD) and
the Official Liquidator (OL). Furthermore, citations were ordered to be
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published. Accordingly, citations were published in the Delhi Editions of
Business Standard (English) and Veer Arjun (Hindi), on 14.11.2015.
7.1
An affidavit dated 09.12.2015 demonstrating service of the petition
on the RD and establishing publication of citation alongwith the
newspaper extracts, was filed by the petitioner company.
8.
Pursuant thereto, the RD filed its affidavit/report under Section 394
A of the 1956 Act. In the affidavit/report, the RD relied upon the general
circular bearing no. 53/2011, dated 26.07.2011 and the circular bearing
no. 1/2014, dated 15.01.2014. Based on the directions contained in the
said, circulars, the RD, sent communications to the ROC and the Income
Tax Department (I.T. Department) seeking their response to the scheme.
8.1
The affidavit/report of the RD adverts to the fact that it received
information from the I.T. Department vide communication dated 11.09.
2015 that there is a FBT demand, in the sum of Rs.1,63,825/-, for the
assessment year 2006-2007, and similarly, a demand of Rs.909/- for the
assessment year 2007-2008 qua the transferor company. Furthermore, it
appears that the I.T. Department has also communicated to the RD that
proceedings under Section 143(3) of the Income Tax Act, 1961 (in short
the 1961 Act) are also pending qua the transferor company in respect of
assessment years 2013-2014 and 2014-2015.
8.2
The RD, evidently, has also received information from the ROC
vide communique dated 08.12.2015 which, inter alia, is indicative of the
fact that the said authority has not received any complaint or objection
from the shareholders, creditors, or any of the other stakeholders of either
the petitioner company or the transferor company.
8.3
The ROC , on its part has indicated that the petitioner company
should fulfil the formalities under sub regulation (c) of Regulation 7 of
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the Foreign Exchange Management Act (Transfer or issue of security by a
person resident outside India) Regulations 2000 [in short, the FEMA
Regulations, 2000] and those prescribed in Form FC GPR. An averment
has also been made by the ROC in its affidavit/report about compliances
been made with the Reserve Bank of India (RBI) in consonance with the
terms and conditions of the scheme.
8.4
This observation has been made in the background of the fact that
under clause 5 of the scheme, each member of the transferor company is
entitled to one (1) fully paid equity share of a face value of Rs.10 each in
the petitioner company against 3390 equity shares of the face value of
Rs.10/- in the transferor company.
8.5
Having regard to the nature of the business of the petitioner
company and the transferor company, Foreign Direct Investment (FDI) to
the extent of 100% is permissible under the automatic route. The ROC,
thus, made the aforesaid observations with regard to the need to comply
with the provision of Regulation 7 (c) of the FEMA Regulations, 2000 in
view of the Non-Resident shareholders of the petitioner company being
issued shares.
8.6
Furthermore, the ROC has averred based on the balance sheets of
the financial year 2013-2014 and the auditors report appended thereto that
there is, prima facie, no violation of the provisions of Section 295-297 of
the Act either by the petitioner company or the transferor company.
8.7
The petitioner company in its rejoinder to the reports of the
RD/ROC has accepted the fact that it is involved in the business of
information technology enabled services, and therefore, it is allowed
100% FDI, under the automatic route.
Furthermore, the petitioner
company in its rejoinder has reiterated the assertions made in paragraph
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5.3 of the scheme, which is that, on approval of the scheme, it shall
comply with the provisions of the FEMA Regulations, 2000.
8.8
The petitioner company has also taken a stand in its pleadings that,
in consonance with clause 6 of the scheme, it shall, follow the pooling of
interest method to account for amalgamation as per Accounting Standard
(A.S.) 14 as notified by the Government of India (GOI) under Section 133
of the Companies Act, 2013 (2013 Act).
8.9
Therefore, in so far as the RD’s affidavit / report is concerned, it is
clear that apart from insisting on compliance being made under the FEMA
Regulations, 2000, there are no objections taken by it.
9.
The OL, similarly has conveyed it has no objections to the scheme.
The record shows that the petitioner company and the transferor company
are engaged in the field of information technology including computers,
software, systems and information technology enabled services sector.
The petitioner company vide its letter dated 16.09.2015 has disclosed that
its shareholders are Non-Resident entities. However, having regard to the
fact that it is in the field of information technology and information
technology enabled services, the petitioner company has asserted that
100% FDI under the automatic approval route is available to it. This has
been confirmed by the ROC, as noticed above.
10.
The petitioner company will thus, comply with all necessary
requirements of law in this regard including filings, if any, which are
required to be made with the RBI or any other statutory authority.
Compliances as indicated in paragraph 5.3 of the scheme shall also be
made by the petitioner company. There are, evidently, no other concerns
raised by the RD.
10.1 In these circumstances, the concerns of the RD stand liquidated.
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11.
I may also note that the petitioner company has informed this court
that in so far as the transferor company is concerned, the High Court of
Karnataka vide order dated 08.09.2015 has already granted approval to
the scheme subject to a further approval by this court.
12.
To be noted, the scheme in clause 10 provides that all employees of
the transferor company in service on the effective date, shall become the
employees of the petitioner company on such date without any break or
interruption in service and on terms and conditions as to remuneration, not
less favorable than those subsisting in the transferor company, as on the
said date.
13.
Furthermore, as per clause 13 of the scheme, the transferor
company shall stand dissolved without being wound up.
14.
Accordingly, it is directed that the petitioner company will comply
with the all provisions of the scheme and, in particular, those which are
referred to hereinabove.
14.1. In any event, notwithstanding what is stated in the scheme, the
petitioner company will file an undertaking with this court, within two
weeks from today, stating therein, that it will take over and defray all
liabilities of the transferor company. It is also made clear, that the Income
Tax Authorities will be entitled to proceed against the petitioner company
qua any liability which it would have fastened on to the transferor
company for the relevant period, and that, which may arise on account of
the scheme being sanctioned. This would take care of the demands, if any,
which may arise against the transferor company to which reference has
been made in paragraph 8.1 above.
14.2 Notwithstanding the above, if there is any deficiency found or, any
violation committed of any provisions of the RBI Act and/ or FEMA
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Regulations, 2000 or the 1961 Act or any other statute, the sanction
granted by this court to the scheme will not come in the way of any of any
action being taken in accordance with law, against the concerned persons,
directors and officials of the petitioner company.
15. Resultantly, in view of the approval accorded to the scheme by the
shareholders and creditors of the petitioner company and, given the fact,
that the concerns of the RD, as indicated above, have been duly taken care
of, in my opinion, there appears to be no impediment in the grant of
sanction to the scheme. Consequently, sanction is granted to the scheme
in terms of Section 391 and 394 of the Act. The petitioner company will,
however, comply with all statutory requirements, as mandated in law. A
certified copy of the order, sanctioning the scheme, will be filed with the
ROC, within thirty (30) days of its receipt.
16.
Consequently, in terms of the provisions of Section 391 and 394 of
the Act, and in consonance with the scheme, the entire undertaking,
properties, rights and powers of the transferor company will stand
transferred to and / or vest in the petitioner company without any further
act or deed. Similarly, in terms of the scheme, all liabilities, claims and
obligations of the transferor company shall stand transferred to the
petitioner company without any further act or deed.
16.1 More particularly, upon the scheme coming into effect, the
transferor company shall stand dissolved without having to follow the
process of winding up.
16.2 It is made clear, that this order will not be construed as an order
granting exemption from: payment of stamp duty or, taxes or, other
penalties / charges, if any, payable, as per the relevant provisions of law
or, from any applicable permissions that may have to be obtained or, even
CO.PET. 405/2015
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compliances that may have to be made, as per the mandate of law.
17.
Resultantly, the petition is allowed and disposed of in the aforesaid
terms.
RAJIV SHAKDHER, J
FEBRUARY 03, 2016
yg
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